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Barriers to Rule 37(e) Sanctions: eDiscovery Concerns

The 2015 amendments to Federal Rule of Civil Procedure 37(e), the rule governing spoliation sanctions, have led to a dramatic decrease in such sanctions over the past three years, recent research from Logikcull shows. Today, spoliation sanctions are down 35 percent from their peak in 2014. And when movants seek the harshest penalties, such as adverse inferences and default judgment, they are denied more than 80 percent of the time.

A quick glance at Rule 37(e)’s sanctions workflow shows why. For a court to impose sanctions for the destruction of electronically stored information, movants have to surmount a series of barriers, some which are deceptively difficult to overcome.

Take, for example, proving the loss of ESI. In a surprising number of cases, this threshold showing is one that many parties can’t meet. And when spoliation has been shown, it need not result in sanctions, unless the moving party can prove that that loss has prejudiced it. Again, this is not always an easy showing to make, as the below case law demonstrates.